State v. Petty

In State v. Petty, 132 N.C. App. 453, 512 S.E.2d 428, appeal dismissed, 350 N.C. 598, 537 S.E.2d 490 (1999), the Court stated: The statutory definition of "sexual act" does not create disparate offenses, rather it enumerates the methods by which the single wrong of engaging in a sexual act with a child may be shown. Furthermore, our Supreme Court has expressly determined that disjunctive jury instructions do not risk nonunanimous verdicts in first-degree sexual offense cases. Id. at 462, 512 S.E.2d at 434. In Petty, the trial court instructed the jury that it could find Defendant guilty of a first-degree sexual offense if, in addition to the other elements of first-degree sexual offense, it found that Defendant had "engaged in a sexual act which was cunnilingus, with -- or any penetration, however slight, by an object into the genital area of a person's body." Petty, 132 N.C. App. at 462-63, 512 S.E.2d at 434. This Court held that: this charge was not error, because the single wrong of engaging in a sexual act with a minor may be established by a finding of various alternatives, including cunnilingus and penetration. Cunnilingus and penetration are not disparate crimes, but are merely alternative ways of showing the commission of a sexual act. The trial court's disjunctive instruction therefore did not risk a nonunanimous verdict. As in Hartness, "even if we assume that some jurors found that cunnilingus occurred and others found that penetration transpired, the fact remains that the jury as a whole would unanimously find that there occurred sexual conduct" constituting the single crime of engaging in a sexual act with a child. Id. at 463, 512 S.E.2d at 434-35.